Excerpt: - .....and, therefore, there was no valid municipality in existence in spite of the rajasthan municipal boards validating act (no. 37 of 1956) (hereinafter called the validating act). the applicants attack the validity of the validating act also. 3. besides this, it was also generally said that no valid notices, as required by sections 60, 61 or 62of the act were published nor were the bye-laws framed by the board published as required by law. the application has been opposed on behalf of the board and the main reliance of the board is on thevalidating act.4).we have therefore to see whether the provisions of the validating act validate whatever has been done by the board in the matter of the imposition of octroi tax from the 1st of july 1955. we shall first consider the question of the.....

Judgment:

K.N. Wanchoo, C.J.

1. This is an application by Jiwanlal and 23 othersunder Article 226 of the Constitution against the State of Rajasthan and the Municipal Board of Chhoti Sadri and it is prayed that the Board be restrained from realising the Octroi Taxes in accordance with the Octroi Rules sanctioned on the 23rd of April 1955 by the Government and put into force from the 1st of July 1955.

2. The facts, on which the application is based, are briefly these. The impugned taxes were sanctioned by the Government by its order of the 23rd of April 1955 and were brought into force by the Board on the 1st of July 1955. The applicants attack the validity of these taxes and their grounds, namely:

(1) The Board has framed no rules as required by Clause (h) of Section 44 of the Rajasthan Town Municipalities Act (No. XXIII of 1951) (hereinafter called the Act) in the manner provided by Section 60 of the Act.

(2) No previous sanction of the Government was taken for framing bye-laws as required by Section 46 (1)(k) of the Act

(3) No municipal limits of the town of Chhoti Sadri were ever fixed by the Government and, therefore, there was no valid municipality in existence in spite of the Rajasthan Municipal Boards Validating Act (No. 37 of 1956) (hereinafter called the Validating Act). The applicants attack the validity of the Validating Act also.

3. Besides this, it was also generally said that no valid notices, as required by sections 60, 61 or 62of the Act were published nor were the bye-laws framed by the Board published as required by law. The application has been opposed on behalf of the Board and the main reliance of the Board is on theValidating Act.

4).We have therefore to see whether the provisions of the Validating Act validate whatever has been done by the Board in the matter of the imposition of Octroi tax from the 1st of July 1955. We shall first consider the question of the boundaries of the municipality. The validity of the Validating Act came up for consideration in Milakhraj v. JagdishChandra, (S) AIR 1957 Raj 293 and it was held that it was valid and the boundaries fixed by the Validating Act would be deemed to be the boundaries of the municipalities.

Learned counsel for the applicants, therefore, has not pressed this ground. He has however pressed the other two grounds relating to the framing of rules and bye-laws and also the ground as to non-publication of various notices required by the Act, This contention has been met on behalf of the Board by relying on Sub-section (2) of Section 2 of the Validating Act. That sub-section is as follows :

'No such tax, rule, bye-law or other action shall be liable to be called in question nor shall the propricty or otherwise of the constitution of any Municipal Board or of the definition of its limits of jurisdiction as stated in Sub-section (1) shall be challenged in any court on the ground of any error, omission or defect of form, procedure or publication'.

5. The argument on behalf of the Board is that Clauses (d) and (c) of Section 2 (1) validate all taxes levied and recovered by what may be called defective municipal boards under Clause (d) and all rules, bye-laws and other actions under clause (e)so far as the past is concerned. Sub-section (2) thengoes on to provide that such taxes, rules and bye-laws as are obviously mentioned in Clauses (d) and (e) of Section 2 (1) shall not be liable to be questioned on the ground of any error, omission or defect of form, procedure or publication.

This sub-section, in our opinion, validates all taxes, rules and bye-laws which were in force on the date the Validating Act came into force, viz. the 31st October, 1956. They therefore continue for the future also and there validity cannot be questioned in any court on the ground of any error, omission or defect of form, procedure or publication.

If, therefore, there was only error omission or defect of form, procedure or publication, the Octroi tax in this case cannot be challenged now in view of Section 2 (2) of the Validating Act on the ground of such defect, omission or error.

Now all that the applicants have pointed out to us is in the nature of defect in form, procedure or publication. For example, so far as the rules are concerned, it is said that the procedure provided by Section 60 of the Act was not carried out.

This is obviously a defect of procedure and is cured by Section 2 (2) of the Validating Act. Again as to bye-laws, it is said that previous sanction of the Government was not taken as required by Section 46 (1) (k) of the Act. This again, to our mind, is a defect of procedure, for it is not in dispute that the sanction of Government was certainly taken.

We call this a defect of procedure in the peculiar circumstances of the Act inasmuch as rules, which are of greater importance than bye-laws can be framed under Section 44 merely with the approval of Government and no previous sanction is required for the framing of the rules. When, therefore, Section 46 requires previous sanction in the case of bye-laws, that is in our opinion a mere matter of procedure, for bye-laws, as we have said above, deal with less important matters than the rules.

So long as sanction of the Government is there to the bye-laws, there is substantial compliance with the Act and Sub-section (2) of Section 2 cures the defect of procedure in not obtaining previous sanction to the consideration o the bye-laws. As to the publication under Sections 60 and 62, it is enough to say that Sub-section (2) of Section 2 of the Validating Act specifically cures any error, omission or defect in publication.

An argument was raised at the Bar that no date was fixed as required by Section 62 from which the Octroi taxes would be leviable in this municipality. As to that, it is enough to say that the applicants themselves say in paragraph 2 of the application that the octroi tax came into force from the 1st of July, 1955. If it was their case that this date was not fixed as required by law, they should have taken that point specifically.

As that point has not been raised specifically in their application, we are not prepared to consider it in this case, for if the point had been raised specifically, the Board would have been able to meet it. As it is, the Board has been given no opportunity to meet this point and we therefore do not permit it to be raised. It was next urged that Section 2 (2) of the Validating Act did not validate the taxes, rules and bye-laws for the future.

We are of opinion that there is no force in this argument. So far as the past was concerned, the taxes, rules and bye-laws were validated by Section 2 (1) (d) and (e) of the Validating Act. Section 2(2) can only, in our opinion, refer to the future. If it were to refer to the past, it would be entirely unnecessary in view of clauses (d) and (e) of Section 2(1). Stress was laid on the word 'such' appearing beforethe words 'tax rule or bye-law' in Section 2 (2) of the Validating Act.

It is urged that from this word we should conclude that only the past was being validated. We are of opinion that there is no force in this contention. The word 'such' was used in Section 2(2) to indicate what taxes, rules and bye-laws were being validated for the future. If the word 'such' had not been used, Section 2 (2) would not only have validated all taxes, rules and bye-laws which were in force when the Validating Act came into force, but even those taxes, rules or bye-laws which might come into force in future.

It was obviously not the intention of the Validating Act to make a change in the law as to the imposition of taxes and framing of rules and bye-laws. What the Validating Act did by Section 2 (2) was to validate the existing taxes, rules and bye-laws of what we may call defective boards and no more. This in our opinion is the significance of the word 'such' in Section 2 (2) of the Validating Act.

6. Lastly it was urged that Section 2(2) was invalid because it was hit by Article 14 of the Constitution. The argument is that by Section 2(2), taxes, rules and bye-laws of defective boards in spite of defect etc. in form, procedure or publication were being validated, while defective taxes, rules and bye-laws by other boards which were themselves not defective were not being validated and this was said to amount to denial of equality before the law. We are not impressed by this argument at all.

The Validating Act is from its very nature for the purpose of validating defects where they might have crept in. From this it does not follow that there was any denial of equality before the law because so far as the future is concerned, all boards were governed by the same law viz. the Rajasthan Town Municipalities Act (No. XXIII of 1951) and the provisions thereof.

The legislature, when it had to deal with certain defective boards and decided to validate their existence, also thought it fit to validate their actions. For purposes of a Validating Act, such boards must be treated to be a class by themselves, as otherwise the whole purpose of the Validating Act would be frustrated and there never can be any validation where only certain bodies out of a large number happen to have committed errors, omissions or defects in form, procedure or publication.

We are, therefore, of opinion that Article 14 has no application and cannot invalidate Section 2 (2) of the Validating Act.

7. There is, therefore, no force in the application and it is hereby dismissed. In view of thefeet, however, that there were defects which werecured by the Validating Act, we are of opinion thatparties should bear their own costs of this application.